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The Advantage Blog

  • Tsongas Litigation Consulting


But what does “justice” look like? Providing care to an injured party? Stopping corporate greed? Getting defective products off the market? Giving back what was stolen? Honoring truth? Promoting competition or protecting one’s invention?

What does “justice” not look like? Applying the law (i.e., the jury instructions) so that a party is “legally” found not responsible.

Very often we hear from both real and mock jurors, “They might not have legally crossed the line, but they sure did something wrong.” These jurors have looked at the law, and then realized that if the instructions are applied as it appears they should be, then the “guilty” party will prevail. For a few jurors this is accepted with reluctance. For many others, the instruction is re-read, re-analyzed, and re-defined so that their interpretation of “justice” can be achieved.

Typically, this re-interpretation of the instructions is not jury nullification. Jurors don’t say (at least openly), “I’m not going to follow the instructions.” In fact, this re-interpretation may not be a conscious process. Instead, jurors often read the instructions and look for wiggle room. They find words like “substantial,” or “reasonable,” and then apply their own definitions.

They remind others that “the attorney (or perhaps even the judge) said we should use our common sense.” They selectively read the parts of the instructions that are helpful and ignore the rest. The debate is not really about the instruction at all, but about the juror’s framework of the case, and his or her desire for justice.

If the plaintiff’s case is advancing some moral or ethical value, or advancing what one could consider in the “public’s best interest,” then a defense case advancing the “fair application of the law” is nearly hopeless. Sure, most people would probably say the law should apply equally to big and small, corporations and individuals. But, in reality, when faced with the dilemma of applying what is most likely considered a legal “technicality” by many jurors versus giving money to an injured party, or punishing bad corporate behaviors, or honoring hard work and innovation, the “technicality” almost always loses.

Plaintiffs and defendants both need to find the “value” in a verdict for their client, and how a verdict in their favor promotes “justice.” In your closing, it is very easy to energize a jury with a call to justice; but it’s nearly impossible to energize a jury with “The jury instructions say …”


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